According to Ulrich Beck, we lack an adequate vocabulary to capture what actually happened with and since 9/11.Footnote 1 Maybe it is this ‘silence of worlds’ that has led academic and policy circles alike increasingly to embrace the vocabulary of risk, precaution, and uncertainty to describe and assess danger:Footnote 2 not the avoidance of ‘threats’, so the argument goes, but rather the management of ‘risks’ characterizes current security practices.Footnote 3 While ‘threats’ emerged and were managed between states, the notion of risk highlights the decoupling of security from states. With risk, security is not a value or goal that states ‘pursue’, but a product that states demand and both public and private military companies supply.Footnote 4 Risk points to a different rationality and different uncertainties prevalent in world politics, answered by illiberal practices such as torture, globally spread secret jails, terror lists, and the recourse to targeted killing flanked by a machinery of surveillance technology employed against one's own population.Footnote 5
Yet the question remains of what the notions of uncertainty, ‘precaution’, or ‘risk’ stand for, how and why they challenge security as a concept, and thus what these notions may mean in the context of international law. In this vein, and without the hope of resolving associated confusions, the objective of this contribution is primarily conceptual – to enquire how this semantic shift from ‘threats’ to ‘risks’ could be applied to highlight some changing contours of international law. It argues that the turn to ‘risk’ can be understood as a change in the relationship between the present and the future, a change in the temporality of security politics. While security politics dealt with the resolution of existing dangers and conflicts, recent regulations are more proactive and try to prevent dangers before they materialize.Footnote 6 The Caroline criteria of necessity, immediacy, and proportionality, for example, limited self-defence to the present by demanding a ‘visible’ and ‘imminent’ threat before acts of self-defence could take place. The idea of pre-emptive self-defence, by which the US administration justified the Iraq war, shifted the modality of the threat from the actual to the possible, from the present to a likely, yet unknown, future.Footnote 7 It brought the future closer to present decision-making, since the possibility of a threat is now sufficient to legitimize counter-activity.Footnote 8
From this perspective, risk replaces the politics of space by a politics of time and gives rise to a specific reasoning focused on how to deal with an unknown yet potentially catastrophic future. It points to the management of a potential future rather than to mechanisms of territorially defined dispute resolution; an attempt to control the uncontrollable where international law, as David Kennedy has pointed out, is often used not to restrain but to legitimate violence.Footnote 9 However, the changing relationship between law and politics goes further than simple abuse of existing norms. Regulating the relationship between the present and the future, risk provides a different language to ascribe accountability and to allocate responsibility, and thereby creates new norms. In this sense, this temporality does not seem to stop at some border but seems to spread globally, with the consequence that Europe is perhaps more part of the ‘willing’ than it is ready to admit. Whereas EU documents highlight the compatibility of the fight against terrorism with human rights, the implementation of precautionary measures such as terror lists demands that the European Court of Justice (ECJ) re-evaluates the meaning of fundamental rights.Footnote 10
This contribution presents its argument in three steps. The first section is conceptual and emphasizes the changing temporality accompanying the semantic shift from ‘threats’ to ‘risks’ or from ‘insecurity’ to ‘uncertainty’. This change is recast, however, in terms of ‘structured’ and ‘unstructured’ uncertainty and explores some of the contours for a risk approach to the study of current legal changes by arguing that risk has to be seen in juxtaposition to the vocabulary of norms as a specific mechanism to manage the relationship between the present and the future.
The conceptual distinction between risks and norms guides the discussion in sections 2 and 3, where this contribution tries to reconstruct the two temporalities in the context of the European human rights regime. Section 2 is more historical and shows how the widely observed relationship or ‘communication’ between the European Court of Justice (ECJ) (including the newly established Court of First Instance (CFI)) in Luxembourg and the European Court of Human Rights (ECtHR) in Strasbourg could be understood in terms of a specific temporality inscribed in the vocabulary of norms – that is, the question of norm violation with existing victims and perpetrators. The third section focuses on how precaution and risk, the evaluation of possible harm, and the rights of possible perpetrators and possible victims seem to enter the European human rights case law in Luxembourg and Strasbourg differently, leading to a plurality of temporalities potentially in conflict with each other and thus changing the relationship of the European courts. However, the purpose of this contribution is not to make some kind of ‘prediction’ of what will happen or that developments are inevitable or necessarily long-lasting. It simply seeks to point to the conflict of different temporalities and how they are negotiated.
1. Risk, time, and the move to precaution
1.1. Two concepts of risk
To examine the relevance of risk for international law, it might be worthwhile to differentiate two concepts or approaches.Footnote 11 The dominant approach to risk follows a quantitative logic and defines it as the product of probability and expected loss, a definition often used by insurance companies or other surveillance institutions to describe the behaviour of sequences and to categorize and divide large populations into ‘risk classes’.Footnote 12 This approach is concerned with the measurement of some specific risk, such as the measurement of the ‘risk’ of dying from a terrorist attack. Sometimes this measure is then compared with the measure of another ‘risk’, for example that of dying in a car accident, in order to compare the relative social value of some taken measure.Footnote 13 This often includes normative judgements of the kind that, for example, because of its lower ‘risk’, a large amount of money is spent in context A while the same money spent in context B would be ‘socially’ better and would make the world a better place.
As the reference to insurance companies emphasizes, the primary objective of this approach is to achieve necessary and certain knowledge about a contingent future. Of course, we may not know what number the dice will show next, but at least we know what the dice is, how it behaves, and what probabilities we can expect, as both the laws of probability and the ‘laws of big numbers’ apply. Hence the dice will always be a dice and will never change into a mouse. It is this static quality that allows actors to bet on future possible states of the world in such a way as to provide a constant and secure income stream – and ultimately to avoid risks. But it is also this quality that weds the concept of risk to a positivist philosophy of science and treats it in naturalistic terms. It is assumed that risk tells us something about the world and its causal forces and natural laws.Footnote 14
Applying this understanding of risk to international law would point to the legal regulation of specific risks such as bovine spongiform encephalopathy (BSE) and nuclear plants, and thus the ways in which risks shape international regulation and regulations shape risks (the risk of regulation and the regulation of risk). It would focus, for example, on how courts address and deal with specific and identified risks, and some cases in international law do in fact address these kinds of question.Footnote 15 But following this approach would hardly justify any further discussion on the relevance of ‘risk’ as a concept, especially as this approach conflates the question of what risk ‘is’ with how it can be measured. It tells us nothing about the contemporary change in the meaning of risk: why does ‘risk’ as a concept experience such a career these days? What does this semantic shift signify? And what does it tell us about today's legal system? Such reflexive questions require an analysis beyond a purely quantitative logic that puts risk in the context of social structures.Footnote 16
Such an approach becomes possible when we give up the positivist quest for certainty and replace it with contingency. This pushes the door open to a plurality of worlds where risk self-referentially points to itself: there is not only the risk of some fact, but there is also a risk of risk, a fundamental uncertainty and contingency underlying the structuring of the world via risk. In this context, risk functions more like a ‘speech act’: as soon as the vocabulary of risk, uncertainty, or precaution is applied, a specific set of institutions, a specific rationality, morality, and specific mechanisms to allocate blame and responsibility become relevant. Consequently, such a risk approach is not interested in the observation or measuring of some predefined risk, but in its ‘gaze’, the observation of other actors or systems and how they observe their world when they observe it with ‘risk’.Footnote 17 Consequently, the positivist ‘what’ is replaced by the more interpretative ‘how’ question, emphasizing the drawing of boundaries, the intersubjective constitution of time and space, and the semantic construction of the world.Footnote 18 Such an approach is interested in the constitutive boundaries of risk, in what is hidden and what is up front, and how these boundaries are drawn, reproduced, and changed. In this sense, risk does not tell us something about the world, but of our engagement with the world: risk creates its own reality. It is not value-neutral, but linked to values and beliefs that formed and structured available alternatives in the first place, as Mary Douglas and Aaron Widavsky once explained:
Whose fault? is the first question. Then, what actions? Which means? What damages? What compensation? What restitution? And the preventive actions to improve the coding or risk in the domain which has turned out to be inadequately covered. Under the banner of risk reduction, a new blaming system has replaced the former combination of moralistic condemning the victim and opportunistic condemning the victim's incompetence.Footnote 19
Whilst economics-dominated approaches treat risk as a natural phenomenon – that is, start their analysis with exogenously given risks – more ‘cultural’ or societal theoretical approaches uncover its institutional context. Of course, different avenues to define ‘the social’, the materiality of risks, and the power of discourses exist. These give rise to rather diverse even if not mutually exclusive literatures.Footnote 20 However, whether it is Beck's idea of a risk society, Foucault's interest in risk as a new form of governmentality, or Luhmann's sociology of risk,Footnote 21 they all put forward the idea that risk is neither an objective thing nor some kind of regularity or social law. Rather it is linked to social conditions of perceptions of how the world is understood and made known.
In this sense, Austrian and post-Keynesian economists have argued for an understanding of uncertainty which is used in juxtaposition to risk, where uncertainty describes a perceived unstructured reality, a tabula rasa we may experience in a state of complete ignorance, or with the breakdown of old convictions.Footnote 22 In these cases, this unstructured uncertainty needs to be absorbed and (re)structured in order to be subjected to risk decisions. The tabula rasa needs to be filled to provide contour and to allow for signification. Whether this absorption of uncertainty occurs via functional expertise,Footnote 23 conventions,Footnote 24 or institutions,Footnote 25 or ideas of risk themselves,Footnote 26 these ‘mechanisms’ all escape the confines of the quantity-oriented instrumental rationality or individual decision-making. Rather, who or what decides which kind of risk is observed – and which kinds are not – tells us more about social structures and the contours of a society than about ‘the risks’ themselves.Footnote 27 The question is thus not what risk ‘is’, but what it ‘does’.
1.2. Risk and the regulation between the past, the present, and the future
At this point, it is worthwhile remembering that the notion of risk itself emerged only in the seventeenth century, when time was increasingly addressed not in terms of aeternitas and tempus but in terms of future and past.Footnote 28 The distinction of aeternitas and tempus framed time in religious terms by separating the sphere of God ‘outside’ time from the human condition marked by its temporality.Footnote 29 Apart from its inscribed hierarchical world view,Footnote 30 this distinction also emphasizes the past over the present and future.Footnote 31 This societal predominance of the past was constitutive for the idea of science and the legitimacy of power and authority, and it also set the confines within which it was possible to extrapolate the ‘before’ in the past and the ‘after’ in the future.Footnote 32 Only in the seventeenth century did the distinction ‘past’/‘future’ replace the older form to demarcate the ‘before’ and ‘after’, which then altered not only the legitimation of power or the entire scientific vocabulary, but challenged the societal dominance of the past.Footnote 33 This shift in the temporal dimension from the past to the future allowed for the emergence of risk, where risk became the modern form of explaining future harm or a contingent outcome, a position previously held by Fortuna, sins, and ancient oracles.Footnote 34 Risk, in other words, provides a mechanism to regulate the relationship between the present and the future and highlights their individual contingency: risk connects the present and the contingent and yet unknown future in so far as the imagination of the future feeds back on actual decisions. Via the contingency of the future, the present itself becomes contingent, which requires that more alternatives are available than can be materialized. Risk, in other words, signifies a highly abstract arrangement of contingencies and thereby also regulates the relationship between the past, the present, and the future.Footnote 35
Now one could argue that norms are quite similar in this respect. They are counterfactually valid, stabilize expectations over time, and thereby also regulate the relationship between the present and the future. And like risk, they reduce unstructured uncertainty and transform it into structured contingency which then manifests itself in questions of whether the right norm has been applied or a norm has ‘really’ been violated, or how issues of responsibility may arise.Footnote 36 Norms also structure situations in so far as they tell us not only about what behaviour is appropriate in some context but about what situation we actually find ourselves in, who the actors and the relevant competencies are, and how rights and duties are to be allocated. As every legal system has established a plurality of processes and structures by which these questions are settled, one could assume that the vocabulary of norms is entirely sufficient to deal with contingency within the legal system and its social consequences, and for an understanding of the ways in which it constructs its own reality.Footnote 37
Although norms and risk both regulate the relationship between past, present, and future, they differ in one crucial aspect: risk is more forward-looking. Norms evaluate some incident in the past or in the present, whereas risk focuses more on a possible yet contingent future and only then asks how present alternatives are to be evaluated. This difference in the temporal dimension has led to the development of different social institutions that process associated contingencies differently. One need only remember that one cannot violate a ‘risk’ in the same way as one can violate a ‘norm’. Of course, risk can become an issue in legal proceedings, when for example massive bad speculation raise issues of responsibility,Footnote 38 but such a translation of risk into norms shifts the underlying temporality in so far as it already implies an evaluation of some accepted risk in the past.
This difference in their respective temporalities suggests at the same time that recent interest in risk points to a change in the temporal dimension underlying the societal production of contingency. It points to an acceleration of time which transcends the confines of the vocabulary of norms. From this perspective, risk signifies the emergence of a different rationality within the legal system, a rationality which is based on a shift towards the future. If this analysis is correct, risk impacts on international law and its legal institutions, rationalities, and the question of the validity of norms via this altered temporality. In the context of the ‘war on terror’, risk provides a new formation of reason directed to controlling the potentiality of a danger. The control of this potentiality redefines fundamental political distinctions such as public/private, war/crime, civil/military, inside/outside, here/there, and inscribes itself into new security policies and military doctrines, in institutions, practices, and arguments. It redefines what is known and how it is known – and at the same time characterizes what is not known, kept hidden, or deliberately excluded;Footnote 39 what is thought to be manageable, what and how something is subject to regulation; and the technologies and rationalities of governing individuals, subjects, and actors, and potential ‘risks’. In the following paragraphs, this contribution tries to trace these two temporalities. It uses the recent conflict between anti-terrorism and human rights as an example to reconstruct the impact of precaution on the European human rights regime.
2. Divergence and convergence within the European human rights regime
The previous section discussed two concepts of risk and argued that norms and risk can be seen as functional equivalents in allocating responsibility and accountability. They differ, however, in their respective temporality, the kind of uncertainty they address, and the rationality to which they give rise. The vocabulary of norms addresses the kind of uncertainties that arise within a well-defined ontology and asks, for example, what norms apply in some incident in the past or the present, whether a violation took place, and what remedies might follow. Risk evaluates a possible incident in a yet unknown future, an only possible danger that feed backs on some actual decision problem. The second and third parts of this contribution try to identify these two temporalities in the context of the European human rights regime. This second part argues that ‘communication’ between Luxembourg and Strasbourg is constituted by the vocabulary of norms and its inscribed temporality, which allowed the two courts to communicate co-operation, threats, and conflicts. The third part traces the introduction of, overlap with, and potential conflict with the temporality of risk.
2.1. The institutional setting of the status quo
It is certainly fair to describe the European human rights regime as a rather diffuse set of institutions resulting in an equally diverse set of descriptions, interpretations, or perspectives. Without wanting to reduce its complexity, one key element is the inter-court relationship between the ECJ and CFI in Luxembourg and the ECtHR in Strasbourg.Footnote 40 A defining element in their relationship is their different sources of jurisdiction: while the ECtHR bases its jurisdiction on Article 19 of the ECHR and became with Protocol 11 to the ECHR the sole authority for interpreting the ECHR, the ECJ on the other hand derives its authority from Articles 220–245 of the EC Treaty, Article 35 of EU Treaty, its own statute, and ‘general principles of Community law’.Footnote 41 Given this background, as is widely known, the ECJ had initially no jurisdiction over human rights issues but introduced them only gradually.Footnote 42 Yet the rise of human rights concerns within the EU did not translate into the EU's membership of the ECHR.Footnote 43 And although the Convention was ‘mentioned’ in the Maastricht Treaty (Arts. 2, 5(1)), the ECHR has not developed any binding force on the EU, as Article 6(2) of the EU Treaty reads:
The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.Footnote 44
In so far as the ECJ only ‘shall respect’ fundamental rights, the ECHR in itself does not have any binding force.Footnote 45 According to the treaty, the ECtHR has no jurisdiction over the EU itself, the ECJ is not bound by the ECtHR, and the ECJ has, formally speaking, no authority to settle human rights disputes.Footnote 46
The growing importance of the EU itself was perceived by the ECtHR as marginalizing the Council of Europe, the ECHR and the court itself. To the extent that the ECJ claimed jurisdiction over human rights issues, the ECtHR feared losing ground, with the danger of being sidelined by the members of the EU: diverging judgments on similar topics would foster the image of fragmentation which would then allow political discretion and forum-shopping. At the same time, the emergence of human rights issues within the EU also provided an opportunity for the ECtHR. While its role within the EU as the sole judicial authority of the ECHR could be threatened, it could at the same time provide a means of securing its institutional survival if not the occasion to obtain a foothold in the EU – if Strasbourg could ensure that Luxembourg aligned its rulings with those of the ECtHR. For the ECJ, on the other hand, the gradual introduction of human rights concerns would extend its institutional supremacy within the EU.Footnote 47 However, the ECJ was to walk a tightrope. On the one hand, the ECJ could not accept the ECHR as binding for EU law itself, as this would have established the authority of the ECtHR within the EU. On the other hand, if the ECtHR were to declare the case law of the ECJ as being against the ECHR, states could use human rights and the ECHR to challenge its supranational status.Footnote 48
The ‘solution’ to this ‘double contingency’ was the creation of a common case law.Footnote 49 From the mid-1970s onwards, the ECJ increasingly referred to the ECHR in general in order to establish human rights as a ‘theme’ within the EU – and thereby create the demand for ‘juridical’ overview – that is, its institutional autonomy.Footnote 50 However, the court used the ECHR not directly, but, as for example in the Internationale Handelsgesellschaft case, in terms of ‘general principles’ of community law.Footnote 51 For example, the ECJ assured in the Hauer judgment that
Fundamental rights form an integral part of the general principles of the law, the observance of which is ensured by the court. In safeguarding those rights, the latter is bound to draw inspiration from constitutional traditions common to the member states, so that measures which are incompatible with the fundamental rights recognized by the constitutions of those states are unacceptable in the community. International treaties for the protection of human rights on which the member states have collaborated or of which they are signatories, can also supply guidelines which should be followed within the framework of community law.Footnote 52
This passage is symptomatic of the ECJ's approach: it introduces human rights as part of general principles, speaks about ‘inspirations’ and ‘guidelines’, and sees itself more in line with national constitutional courts than with ‘treaty law’. Meanwhile the court referred to the ECHR in more than a hundred cases.Footnote 53 However, these references follow a particular logic, as Laurent Scheeck demonstrates:
The ECJ always specifies that the observance of the general principles of law is ensured by itself. A direct reference to the ECHR would imply recognition of the pre-eminence of the ECtHR – which is to ensure the observance of the ECHR – whereas an indirect use of the ECHR is a way of keeping Strasbourg outside of its legal order.Footnote 54
The ECJ, in other words, makes sure that reference to the ECtHR does not develop any binding force – which could threaten the ECJ's institutional autonomy.Footnote 55 At the same time, Luxembourg actively aligns its case law with Strasbourg, which now holds a position of a ‘quasi-constitution court’ for questions of human rights, and thereby managed to pull the EU closer to the convention.Footnote 56 In other words, the creation of a common case law, supported by regular meetings, pulled these two courts closer together while at the same time allowing the courts to increase their institutional autonomy.Footnote 57
2.2. Communicating the status quo
How the two courts used their case law to strengthen the validity of their judgments can be seen in the case law concerning Article 8 of the ECHR. For example, in Hoechst v. Commission,Footnote 58 the ECJ had to decide whether the way in which the Commission pursued its investigations (Art. 14 of Regulation 17) violated the right to respect for the home provided for in Article 8(1) of the ECHR. By noting that there would be no ECtHR case law on this matter, the court rejected the extension of Article 8 to private businesses. In Niemitz v. Germany, the ECtHR followed the ruling of the ECJ.Footnote 59 The ECJ again clarified its Hoechst judgment in the light of new rulings by the ECtHR in the Roquette Frères judgment. By taking each other's decisions into account, the two courts not only increased the weight of their decisions, but signalled co-operation.
The courts signalled not only mutual support but also threats with their respective case law. In this respect, the Matthews case is quite instructive. In contrast to the ‘M. & Co. paradigm’ – that is that the ECtHR refrains from hearing cases concerning the EU – the ECtHR found that the United Kingdom is required to secure elections to the European Parliament notwithstanding the Community character of those elections: the Maastricht Treaty, with its changes to the EC Treaty, was entered into freely by the United Kingdom. Although the 1976 act might have been an act by the community, the Maastricht Treaty is not. The United Kingdom is therefore responsible ratione materiae under Article 1 of the Convention to secure equivalent protection of rights.Footnote 60 In other words, the members of the ECHR are responsible even after transferring their rights to an international organization. This implied that EU institutions are not allowed to take steps which would make it impossible for its members to fulfil their obligations under the ECHR. The Matthews judgment, in other words, requires that the EU recognize the ECHR as such and grant it priority in case of norms collisions.Footnote 61 The Matthews judgment was a strong signal to the ECJ. It was the first case in which the court held a member state responsible for a case rooted in community law. In particular, the ECtHR acted on a subject matter where the ECJ itself did not have authority to review the case. As one EU official admitted, ‘Matthews was an annoying judgement round here.’Footnote 62
A couple of months later the ECJ answered with its judgment in the Baustahlgewerbe case. The background to this case was the fining by the Commission of the German company Baustahlgewerbe GmbH for infringement of European competition law under Article 85(1) of the EC Treaty.Footnote 63 The company filed a suit against this decision and the CFI reduced the fine.Footnote 64 Against this judgment the complainant filed for an appellate proceeding by the ECJ on 14 June 1995, asserting an infringement of its right to a fair trial under Article 6 of the ECHR: the CFI had given its judgment 22 months after the close of the oral proceedings, in violation of the principle of promptitude.Footnote 65 The ECJ found no such violation, as ‘the appellant has not established that the duration of the deliberations had any impact on the outcome of the proceedings before the Court of First Instance, in particular as far as any impairment of evidence is concerned’.Footnote 66 Yet the court stated, citing ECtHR case law,Footnote 67 that ‘the reasonableness of such a period . . . [depends] on the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities’.Footnote 68 Although the CFI was granted extended time in exceptional cases, this would not apply to the present case.Footnote 69 Therefore the court considered that a reduction of the fine by 50,000 European currency units (ECU) was reasonable given the excessive duration of the proceeding. Otherwise, the court dismissed the appeal.Footnote 70 The streamlining of the case law was thus intended not to support but to keep the ECtHR out of the EU and avoid potential intrusion.
While the creation of a common case law allowed both courts to communicate with each other, the current constellation rests on rather fragile assumptions. For example, the status quo can be threatened by new developments within the EU. Meanwhile the European Union has created its own human rights instrument, the Charter on Fundamental Rights of the European Union.Footnote 71 It was originally planned that the charter would form an integral part of a future European constitution, and it is now subject to the dispute surrounding the Lisbon treaty.Footnote 72 How the Lisbon treaty will affect the current ‘equilibrium’ cannot be answered at this point, given the uncertainty of both the current process and of the likelihood of the EU becoming a member of the ECHR. However, if the ECJ is able to ‘free’ itself from the ECHR and the ECtHR, current endeavours to align their case law are likely to come to a standstill. The current co-operation between the two courts will then translate into competition, if not conflict.
What is more important for the purpose of this paper is the possible repercussions of a change in the underlying temporality of the constellation and ‘discourse’ between the two courts. The two courts used their case law to signal co-operation, competition, and conflict.Footnote 73 This communication, however, is based upon and structured by the temporality inscribed in the vocabulary of norms. The communication between the courts is based on a specific temporality defined by the legal rationality of ‘responsibility’. The cases dealt with past incidents with victims and norms violations and were bounded by structured uncertainty. For example, the general information on procedures of the ECtHR reads,
Any Contracting State (State application) or individual claiming to be a victim of a violation of the Convention (individual application) may lodge directly with the Court in Strasbourg an application alleging a breach by a Contracting State of one of the Convention rights.Footnote 74
In other words, the cases took a past event as a vantage point from which to reconstruct the meaning of the case on their own terms. The temporality determined the range of possible arguments and the reasoning of the court. The past incident provided ‘guidance’ or ‘inspiration’ both for the present allocation of rights, duties, and responsibilities and for ‘future’ behaviour.
The temporal structure of the cases directly relates to notions of uncertainty and norms: the uncertainty relevant for evaluating and judging the cases was addressed by the vocabulary of norms. Legal questions addressed the issue of whether a norm was violated and what consequences might follow. What the turn to ‘risk’ now suggests is a reconfiguration of this temporality, a challenge to the norm-based legal rationality of ‘responsibility’ included. The next section suggests that the two courts differ in their approach to anti-terrorism measures. Luxembourg seems to incorporate the idea of precautionary measures as some kind of legal argument, whereas the ECtHR relies on the previous case law and temporality. It is beyond the scope of this paper to show whether or how the ECJ could thereby drive out the ECtHR. The primary objective is to show that ‘risk’ allows us to identify the emergence of a different kind of uncertainty that provides a different rationality in allocating accountability and responsibility within international law. However, the discussion does suggest that conflicts Arising from the two temporalities will manifest themselves in the second and third pillars (respectively a common foreign and security policy (CFSP), and police and judicial co-operation in criminal matters (PJCC)) of the European Union.
3. Risk and the issue of human rights in times of anti-terrorism
Since the terrorist attacks of 9/11 the European Union has intensified its endeavour to formulate a coherent anti-terrorism policy. While the European response was characterized by diverging views and opinions, a meeting of the Justice and Home Affairs (JHA) Council on 20 September 2001 formulated the basic confines of the policy to come. Certainly its implementation was further stimulated by the United States and by binding UN Security Council resolutions, but already in December 2001 a Council Framework Decision put anti-terrorism measures into effect.Footnote 75 As the Guidelines on Human Rights and the Fight against Terrorism published by the Council of Europe emphasized, Europe would recognize the importance of human rights,Footnote 76 a position often defined in juxtaposition to the United States.Footnote 77 Whether or not the high status ascribed to European Convention on Human Rights justifies the idea of ascribing some kind of normative power to Europe,Footnote 78 the war on terror does affect the European human rights regime in so far as the European Union today takes a more precaution-friendly stance. For example, the EU Council fact sheet, ‘The European Union and the Fight against Terrorism’, published on 14 May 2007, emphasized that ‘The first objective is to prevent people turning to terrorism’, meaning that ‘people’ are continuously examined and subject to new surveillance machineries that help to identify potential subjects and put them under special regulation beforehand.Footnote 79
Characteristic of this new precaution ‘dispositif’ is the practice of the terror list, where suspects are identified and then subject to ‘targeted’ sanctions such as the freezing of assets.Footnote 80 However, these identified persons do not have the right to be informed beforehand that they are treated as ‘suspects’, nor do they have a right to be heard or to a fair trial once their name is on the list. Rather, the processes of listing and de-listing are based on a rather dubious process of evidence gathering by secret services and their evaluation by ‘specialized’ committees. From this perspective it comes as no surprise that the EU formulated its countermeasures policy programme predominantly within the second and third pillars, where there is almost no juridical oversight by the ECJ.Footnote 81 The question relevant for this part is, then, how does this embrace of precaution by the EU affect the European human rights regime?
3.1. Jurisprudence in StrasbourgFootnote 82
The well-known Soering case might provide an analogy of how the ECtHR approaches the war on terror. In that case a German national was to be extradited from the United Kingdom to the United States, facing charges of murder before a Virginian court. The ECtHR argued that such an extradition would constitute a violation of Article 3 of the ECHR, as a case of ‘inhumane treatment’ due to being on death row for a considerable time period.Footnote 83 It is of course noteworthy that the court did not base its argument on Article 2 and the right to life. However, this case also shows how the court treats ‘future’ threats: it ties the ‘threat’ to the modality of actuality, and even though the court did ‘foresee’ the likely result of a trial in Virginia, it did not evaluate the likely or possible ‘threat’, but rather the actual consequences of a past incident – that is, the factual consequences of the US legal system. In other words, the court engaged in prevention but not in precaution. This Soering judgment proved to be paradigmatic for the court's approach to preventive measures when it later argued that the ECHR does not allow for preventive detention for deportation if an immediate removal of that circumstance is not secured.
A case more concerned with the practice of blacklisting is Segi and Gestoras Pro Amnestía v. the Fifteen Member States of the European Union, where the court had to review the EU common position 2001/931 concerning anti-terrorism measures.Footnote 84 Segi, a Basque youth movement, regards itself as a promoter and protector of the Basque identity and language. Gestoras Pro Amnistía describes itself as a non-governmental organization for the protection of human rights in the Basque lands. On 5 February 2002 and 19 December 2001 respectively, the Spanish National Court magistrate, Judge Baltasar Garzón, classified the two organizations as part of the Basque terrorist organization ETA and ordered as a preventive measure a suspension of the associations' activities and the freezing of their assets. Blacklisted, without funds, and with their activities suspended, the two organizations filed an application to the ECtHR, arguing that these measures violated their rights to freedom of expression and association as well as their property rights. In its ruling the ECtHR dealt at length with EU common positions and the second and third pillars. Ultimately the court declared the application inadmissible because of a lack of victim status. The organizations would not be directly affected by the common positions as such but by their implementation by member states. At the same time the court pointed out that implementation of second-or third-pillar measures could, in principle, raise issues of responsibility under the Convention. In other words, while the court acknowledged its potential jurisdiction with respect to second-and third-pillar measures, an affected individual has nevertheless to be a victim, according to Article 34 of the Convention.
A similar tendency is detectable in the Bosphorus case,Footnote 85 addressing the relationship between the ECHR and EU legislation stimulated by UN Security Council resolutions. To address the violence in the former Yugoslavia, the UN Security Council adopted several resolutions, such as Resolution 820 of 17 April 1993, under Chapter VII of the UN Charter, imposing sanctions on the Federal Republic of Yugoslavia (FRY).Footnote 86 The EU implemented these resolutions with, for example, Regulation 990/1993. On the basis of these documents, a Turkish airline and travel organizer found one of its aircraft, leased from a Yugoslavian national airline, impounded by the Irish authorities. In the ensuing legal dispute the Supreme Court of Ireland requested the ECJ to evaluate whether the regulation concerned applied to private undertakings. To respond to this request the court needed to evaluate the proportionality and relationship of property rights and UN sanctions. The court argued that the resolution under consideration explicitly stated that it would apply to ‘any aircraft which is the property of a person or undertaking based in or operating from the FRY’.Footnote 87 Accordingly, to the ECJ, it was not necessary to have actual or effective control over the aircraft, especially
as compared with an objective of general interest so fundamental for the international community, which consists in putting an end to the state of war in the region and to the massive violation of human rights and humanitarian international law in the Republic of Bosnia-Herzegovina, the impounding of the aircraft in question, which is owned by an undertaking based in or operating from the Federal Republic of Yugoslavia, cannot be regarded as inappropriate or disproportionate.’Footnote 88
After the Supreme Court's dismissal of the application the applicant claimed before the ECtHR that the impounding of its leased aircraft would breach the right to peaceful enjoyment of its possession according to Article 1 of Protocol 1 to the ECHR. In this judgment the ECtHR had to settle the question of whether or not member states can be held responsible under the ECHR for the implementation of Security Council Resolutions in EU law. It therefore had to compare an EU regulation with the ECHR. The ECtHR found that the second paragraph of Article 1 of Protocol 1 was applicable – that is, that a state can preserve the right to control the use of property in accordance with the general interest. True to its previous case law, the court did not interfere with the transfer of rights from states to an international organization. This international organization could not, as long as it was not a member of the ECHR, be held responsible under the ECHR itself, as long as equivalent protection was provided by the organization. As EC law would provide such an equivalent standard, Ireland was not to be held responsible under the ECHR.
What is interesting in the judgment is the non-use of the term ‘general interest’. General interest could – by identifying a state of emergency that ‘terrorism’ often is said to constitute – serve as an entrance for precautionary measures. As is pointed out in the judgment at paragraph 48, the ‘general interest’ to end the civil war could legitimize the impounding of the aircraft as a ‘preventive’ measure. In this case, the evaluation process would change, as the avoidance of violence and the rights of the potential victims would have to be compared with the rights of the (potential) offenders. However, the court argues differently, and discusses at length the relationship between the EU, the member states, and the convention, and the conditions under which issues of responsibility may arise.Footnote 89 This line of argumentation shows that ‘there was no dysfunction of the mechanisms of control of the observance of Convention rights’,Footnote 90 yet at the same time reserves the right to hold member states responsible for violations of the ECHR by the EU. This reinforcement includes Article 34 and the applicant's status as victim.Footnote 91 As the court itself writes, cases are struck out because the applicant's victim status ceased to exist.Footnote 92 The need for an actual victim binds the ECtHR to the temporality of its previous case law.
How that focus on the present frames the area covered by the court also became visible in the Senator Lines case, where the company Senator Lines asked the court to annul a fine of €12.75 million which had been imposed by the Commission for breach of antitrust law. Before the ECtHR could finalize its proceedings, the CFI decided on 22 October 2003 to annul the fine, leaving Strasbourg without a case. On 10 March 2004 Strasbourg decided that the application by Senator Lines was inadmissible by declaring that there were no longer victims. Whether or not the CFI deliberately annulled the fine to terminate proceedings at the ECtHR is beyond the scope of this paper. However, it does show that the ECtHR bases its case law on the temporality provided by the vocabulary of norms, that the ECtHR has not (yet) introduced ideas of precaution to assess accountability and clarify responsibility.Footnote 93
One of the reasons for this is probably the fact that only states can be defendants. The state first engages in some counterterrorist measure and only then does the court evaluate its compatibility with the ECHR. It can never evaluate the conduct of terrorists, which will only emerge as a background to legitimize specific state action.Footnote 94 But terrorists themselves will not be held responsible by the court. Ultimately, the ascription of risk to some specific individual to deprive that person of his fundamental rights, such as the right to a fair trial, or to eclipse the presumption of innocence does not work. Rather, the ECtHR seeks to downsize the threat of terrorism. It will certainly resist an application of Article 15, and in Hulki Gunes v. Turkey or Klass v. Germany,Footnote 95 the court tried to uphold the fundamental rights of the potential ‘terrorists’. In other words, the court tries to attach the threat to actuality and not potentiality, as Warbrick observed: ‘what the court required was that the nature of the particular threat to be demonstrated and the proportionality of the response be established’.Footnote 96 As such, the ECHR focuses on the location of the victim and less on the status of the ‘terrorists’ as risk.
3.2. Jurisprudence in Luxembourg
While the ECtHR avoided the question of whether or not ‘targeted’ sanctions were compatible with the ECHR, the CFI directly addressed this question by embracing precaution as a legal argument.Footnote 97 For example, in the Yusuf and Kadi cases the CFI had to address the legality of terror lists,Footnote 98 a measure introduced and fostered by the Security Council by several of its resolutionsFootnote 99 and implemented via PJCC and CFSP EU regulations.
Ahmed Ali Yusuf, a Somali-born Swedish resident, and Yassin Abdullah Kadi, a citizen of Saudi Arabia, found their names on the list and overnight found themselves without funding; any external financing could have counted as the financing of potential terrorists. With two other persons, whose names were later removed from the list, they filed an application to the CFI arguing that according to Articles 60 and 301 EUT, the EU lacked competence for its regulations 881/2002, 467/2001, and 2199/2001 implementing Security Council Resolutions 1267, 1333, and 1390; that the regulations would violate Article 249 EG; and that they ultimately even violated fundamental rights as guaranteed by the ECHR.Footnote 100
Faced with the questions of whether and how the precautionary measure of terror lists would violate human rights, the court made a rather surprising move: it ‘constitutionalized’ the UN Charter and thereby established the legality and authority of the Security Council resolution for the EU. It argued that according to Article 103 of the UN Charter and Article 307 of the EUT, and
from the standpoint of international law, the obligations of the Member States of the United Nations under the Charter of the United Nations clearly prevail over every other obligation of domestic law or of international treaty law including, for those of them that are members of the Council of Europe, their obligations under the ECHR and, for those that are also members of the Community, their obligations under the EC Treaty.Footnote 101
Referring to the ICJ opinion on Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie,Footnote 102 it observed that UN members agreed to accept and carry out the decisions of the Security Council (Art. 25 UN Charter). Hence, despite the fact that the community itself is not a member of the United Nations and that Article 25 of the Charter would therefore not apply to the EU itself, the creation of the EU would not somehow alter member states' obligations under the UN Charter,Footnote 103 particularly as the UN Charter was signed before the European Communities came into existence, and Article 297 of the EC Treaty explicitly accepted its obligation ‘to carry out obligations it has accepted for the purpose of maintaining peace and international security’.Footnote 104 Since the EU is equally bound by the UN Charter,Footnote 105 the CFI would have no authority to review Security Council decisions per se:
[T]he Community may not infringe the obligations imposed on its Member States by the Charter of the United Nations or impede their performance and . . . in the exercise of its powers it is bound, by the very Treaty by which it was established, to adopt all the measures necessary to enable its Member States to fulfil those obligations.Footnote 106
However,
[T]he Court is Empowered to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible.Footnote 107
If a resolution were to derogate from jus cogens, as recognized in the preamble of the Charter, then the members of the EU would not be bound by it, a point derived from Article 24(2) of the Charter.Footnote 108 The question for the court to answer was thus whether Security Council resolutions would violate jus cogens. The fundamental rights then examined in detail by the court were the rights ‘to make use of their property’, ‘to a fair hearing’, and to ‘an effective judicial remedy’.Footnote 109 However, it did not pursue the point of whether the resolutions would violate these rights, rather, it focused more on whether these rights would be part of jus cogens and found that they were not. Hence the Security Council did not violate jus cogens, the resolutions were binding, and the court had no authority to review these decisions. Consequently the court dismissed the application's action against the Council regulations.
What the judgment shows is that the CFI ‘constitutionalizes’ UN law and therewith introduces precautionary measures in its legal argumentation, while in its Gestoras Pro Amnistía decision the ECtHR dismissed the charge by the two Basque organizations assumed to have contacts with international terrorism, on the basis that the freezing of accounts had not yet occurred.Footnote 110 Playing out the different temporality, then, Luxembourg has already evaluated the conflict between precautionary security policy and human rights protection with important repercussions for the evaluation of evidence or the right to information. In its Sison judgment, for example, the CFI confirmed that it would have to balance restrictions on the right to information against the ‘public interests’ embodied in the fight against terrorism.Footnote 111 Overall, the CFI explicitly downplays the role of the ECHR and reduces the scope of influence of the ECtHR, and thereby loosens the net that the ECtHR had tightened in its Matthews decision.Footnote 112 Looking at Segi and others and the Kadi case, two cases that address the jurisdiction of the two courts concerning measures taken under the second and third pillars, the tensions arising from the two different temporalities at play manifest themselves quite openly, and it seems that there is increased competition between the courts concerning criminal matters.Footnote 113 At least the ECJ took crucial steps towards the third pillar with its Pupino decision and continues this trend in its recent judgments in the context of the fight against terrorism. The ECJ thereby not only tries to establish the supremacy of EU law in the third pillar, but it is the ECJ that protects fundamental rights in this area.Footnote 114 Strasbourg on the other hand could always argue that the EU system is now regarded as ‘deficient’ and that a review of the ECJ judgments is necessary.
4. Conclusion
To foster its argument, this contribution has separated risk from norm as two modes of ascribing responsibility in international law. While the primary focus of norms is on the present or the past, risks are more future-oriented. This difference in temporality shows itself, for example, in the description of deviant behaviour and the kind of uncertainty addressed. In this vein the paper argued that the move to precaution as a new ‘dispositif’ or ‘paradigm’ of risk can be understood as a change in the temporal dimension of legal reasoning. Precautionary measures redefine the relationship between the present and the future and the uncertainties addressed. Legal rationalities are redefined, allowing for the unstructuring of situations and a re-evaluation of legal processes. Precaution alters the rules of information gathering, evidence, and argumentation in both politics and international law. As such, risk provides a new formation of reason and rationality based on the ever-present yet contingent terrorist act. It establishes itself as an alternative to the vocabulary of norms for the ascription of accountability and thus the allocation of responsibility.
The article has traced the impact of precaution in the context of the European human rights regime, characterized by a particular constellation between Luxembourg and Strasbourg. Whilst current links between these two courts are fragile and based upon a specific temporality underlying the distinction of victims and perpetrators, the move to precaution introduces a new reasoning into legal argumentation. While Strasbourg still bases its case law on the present, in the Yusuf and Kadi cases Luxembourg began to evaluate and compare the rights of potential terrorists and victims. Is it legal to deprive a suspected terrorist of some basic rights in order to save possibly thousands of lives? And how can these rights be compared with the human rights of that suspect? In any case, an answer to these questions will inevitably shift the balance between the ECtHR and the ECJ. The conflicts between these two temporalities, including the relationship between Strasbourg and Luxembourg as well as the relationship between the UN Charter and European law more generally, are currently negotiated. Even if the ECJ in its current review of the Kadi case were to set aside the CFI judgments – that can only be hoped for – the tensions between these two temporalities remain.
